Ustun Law Group, PLLC

Facts About Proposed Changes to “Affidavit of Support” Process

by | Oct 6, 2020 | Blog

Background :

Since December 19, 1997, the Congress has required an alien’s sponsor to sign an affidavit of support under section 213A of the Immigration and Nationality Act (INA) pledging financial support for the sponsored alien in the event the sponsored alien applies for or receives means-tested public benefits.

According to the present administration; Even though there are various deeming and reimbursement requirements applicable to an alien and their sponsor, there are no strict guidelines for following such laws. Hence, Trump Issued a memo on May 23rd, 2019 to change that situation.

So, What Was the Original Timeline for Providing Such Guidance?

“No later than 90 days after the date of this memorandum, the Secretaries of Agriculture and Health and Human Services shall take all appropriate steps to enforce section 213A of the INA”.

What Constituted The Original Enforcement Plan?

  • Establishing or updating, as appropriate, procedures and guidance on the reimbursement obligations of sponsors
  • Providing such procedures and guidance to all entities involved in enforcement effort actions, including the Federal and State officials responsible for administering any means-tested public benefits programs under the respective purview of each secretary
  • Procedures for recovering reimbursement from an alien’s financial sponsor for means-tested public benefit payments made to an alien
  • Procedures for notification to the sponsor of amounts owed in reimbursement and any procedures related to appeal, payment plans, non-response, and non-reimbursement
  • Procedures for notifying the Attorney General and Secretary of Homeland Security of sponsor’s non-payment and procedures for requesting that the Attorney General bring a civil action against the sponsor
  • Procedures for data sharing with Federal agencies, as appropriate and consistent with law
  • Procedures for how the income and resources of the sponsor and the sponsor’s spouse will be deemed attributable to the alien in determining eligibility for the means-tested public benefit and the number of benefits that may be awarded
  • Procedures for determining whether any exceptions to the deeming or reimbursement requirements apply to the alien

The original memo can be found here.

Proposed Rule

Timeline:

  • On August 14, 2019, DHS published a final rule, Inadmissibility on Public Charge Grounds
  • DHS Proposed Rule Making to Strengthen the Affidavit of Support Process on October 1, 2020

“The proposed update would require American citizens, U.S. nationals and lawful permanent residents who choose to sponsor an immigrant by submitting a Form I-864, Affidavit of Support Under Section 213A of the INA, or Form I-864EZ, Affidavit of Support Under Section 213A of the INA, to provide credit reports and credit scores, certified copies of income tax returns for the last three years, and bank account information to effectively demonstrate they can maintain the required income”.

What is the Current Process and Purpose of an Affidavit Under Section 213A of the INA?

  • An Affidavit is required for most family-sponsored immigrants and some employment-based immigrants
  • A petitioning sponsor must execute Form I-864 or Form I-864EZ at one of the following points in the immigration process depending on the type of immigration benefit the applicant is seeking
  • In certain circumstances, a joint sponsor or a substitute sponsor is permitted
  • By executing an Affidavit, a sponsor is creating a contract between the sponsor and the U.S. Government
  • The intending immigrant becoming a lawful permanent resident is the consideration for the contract
  • Under the contract, the sponsor agrees that he or she will provide support to the sponsored immigrant at an annual income not less than 125 percent of the Federal poverty line
  • The sponsor also agrees that the U.S. Government can consider the sponsor’s income and assets as available for the support of the sponsored immigrant when the immigrant applies for means-tested public benefits
  • Sponsors submit either a Form I-864 or the shorter Form I-864EZ
  • Form I-129F, Petition for Alien Fiancé€
  • Form I-600, Petition to Classify Orphan as an Immediate Relative) for the relative being sponsored
  • The Form I-864 and Form I-864EZ are designed to determine whether the individual executing Form I-864 or Form I-864EZ meets the eligibility criteria for sponsorship

Who Is Considered as a “Sponsor”?

  • In general, a sponsor is defined as an individual who executes a Form I- 864 or Form I-864EZ with respect to a sponsored alien
  • A citizen or national of the United States or a lawful permanent resident and at least 18 years of age; is domiciled in any of the several States of the United States, the District of Columbia, or any territory or possession of the United States
  • A petitioner who meets all the requirements of section 213A(f)(1) of the INA, 8 U.S.C. 1183a(f)(1), except for the requirement to demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line sponsor may still be a sponsor
  • The term sponsor also includes an individual who is on active duty (other than active duty for training) in the Armed Forces of the United States, is petitioning for his or her spouse or child, and demonstrates  the means to maintain an annual income equal to at least 100 percent of the Federal poverty line
  • Certain relatives of employment-based immigrants can also be a sponsor if the relative filed a petition for the sponsored alien as an employment-based immigrant under section 203(b) of the Act, 8 U.S.C. 1153(b)
  • A petitioner who meets all the requirements of section 213A(f)(1) of the Act, 8 U.S.C. 1183a(f)(1), except for the requirement to demonstrate the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, but accepts joint and several liabilities with a joint sponsor (as defined under section 213A(f)(5)(A) of the INA, 8 U.S.C. 1183a(f)(5)(A)), is also a sponsor

How Do Sponsors Demonstrate Means To Maintain the Required Income?

  • Sponsors may demonstrate that they have the means to maintain an annual income equal to at least 125 percent of the Federal poverty line, or 100 percent as applicable, through a combination of income and/or significant assets
  • All sponsors must submit a copy of their Federal income tax return, including supporting documents like schedules, for the most recent tax year
  • Provide evidence demonstrating why they were not required to file a federal tax return for that year in case they did not have to for that particular year
  • Sponsors may also submit additional evidence demonstrating their income, including letters evidencing their employment and income, paycheck stubs, and financial statements

What Are the Proposed Changes?

1. Requiring Joint Sponsors In Certain Circumstances

    • DHS is proposing revisions to 8 CFR 213a.2(c) to account for additional evidence relevant to determining whether the sponsor can demonstrate the means to maintain income at the income threshold and whether or not a sponsor can actually meet his or her support obligations
    • Joint Sponsor Required when Petitioning or Substitute Sponsor Received Means-Tested Public Benefits
    • Joint sponsor required when petitioning sponsor or substitute sponsor defaulted on the support obligation

2. Changes to “household income” Definition

    • DHS proposes revising 8 CFR 213a.1 to change the definition of “household income” to limit household income to the income of the sponsor, the sponsor’s spouse (if he or she executes a Contract), and, in specific circumstances, the intending immigrant
    • Currently, any household member who meets the criteria set forth in the current household income definition may execute a contract
    • Under the proposed rule, household income will not include any income derived from unlawful enterprises, such as proceeds from illegal gambling or drug sales,or from means-tested public benefits
    • By limiting whose income may be considered available to the sponsor, DHS believes it will reduce the possibility of counting income of household members who may not be able to, on their own, meet the support obligations

3. Changes to “household size”

    • DHS proposes revising 8 CFR 213a.1 to change the definition of household size to also include, for purposes of counting the household size
    • With respect to sponsored immigrants and household members who are counted as part of the household size, current regulations require only the inclusion of aliens whom the sponsor has sponsored under any Affidavit, and for whom the sponsor’s support obligation has not been terminated, as well as the number of aliens to be sponsored under the current Affidavit
    • The sponsor’s household size should reflect all support obligations the sponsor has agreed to undertake as either a sponsor or as a household member

4. Revised Evidentiary Requirements

    • DHS is proposing revisions to 8 CFR 213a.2(c) to require additional documentary evidence that sponsors need to provide with their Affidavit to demonstrate that they have the means to maintain income at the applicable income threshold
    • Requiring credit reports and credit scores
    • Federal income tax returns for 3 years

5. Bank Account Information

    • DHS proposes to amend 8 CFR 213a.2(c)(2)(v) to add the collection of the sponsor’s bank account information, such as type of account (e.g. checking, saving), bank account numbers, and routing numbers
    • DHS also proposes to add the collection of bank account information for a household member who executes Form I-864A

6. Address Change Requirements

    • DHS is proposing to revise 8 CFR 213a.3 to require that all household members who execute a Contract must notify DHS within 30 days if they change their address
    • The current regulation only requires sponsors to submit an address change to DHS using Form I-865

7. Information Sharing Provisions

    • DHS is proposing to revise 8 CFR 213a.4 to update how certain information concerning sponsors and sponsored immigrants is submitted to or requested from USCIS
    • Eliminating Subpoena Requirement
    • Revising Reporting Processes

8. Revised Definitions

    • DHS proposes to add new definitions to 8 CFR 213a.1, revise current definitions of key terms in 8 CFR 213a.1 and also add alphabetical designations for each definition
    • Add a definition for active duty
    • Add a definition for active duty for training
    • Add a definition for “execute”
    • Amend federal poverty line definition
    • Amend household income definition
    • Amend household size definition
    • Amend the immigration officer definition
    • Amend the income definition
    • Amend joint sponsor definition
    • Add a definition for petitioning sponsor
    • Amend the definition of sponsor
    • Add a definition for U.S. Armed Forces

9. Clarifying Affidavit Requirements for Certain Children of U.S. Citizens

Acquiring U.S. Citizenship

    • DHS proposes to clarify the exemption from the Affidavit requirement for foreign-born children who will automatically acquire U.S. citizenship under section 320 of the Act after admission to the United States as an LPR and taking up residence in the legal and physical custody of their U.S. citizen parent

10. Miscellaneous Other Changes

    • DHS proposes deleting 8 CFR 213a.2(a)(1)(ii), which explains when an Affidavit is executed
    • DHS proposes to add a definition for the term “execute” in proposed 8 CFR 213a.1 that would apply to both Affidavits and Contracts, and would clarify what execute means throughout the proposed rule

11. Transition Period

    • DHS proposes that all applications for adjustment of status and applications for immigrant visas postmarked (or if applicable, electronically submitted) before the effective date of the final rule will be adjudicated under the criteria currently found in 8 CFR part 213a as promulgated by the 2006 final rule

Other details of the rule can be found here

If you have questions about this new proposed rule or have questions about the Green Card procedure in general, you can schedule a consultation with us:

Schedule a call at 469-994-9407  or contact us using the form.